This Petition for Review from the May 9, 2000 Memorandum of Decision by the Commissioner acting for the First District was heard January 26, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from a ruling by the Commissioner acting for the First District dated May 9, 2000, and entitled “Memorandum of Decision Re: Claimant’s Motion to Re-open and Re-figure Average and Basic Compensation Rate.” He asserts on review that the trier erred by failing to reopen a voluntary agreement in order to recalculate his base compensation rate under § 31-310. We find no such error, and affirm the trial commissioner’s decision.

The found facts relevant to this issue are limited. The claimant sustained a compensable back injury on Monday, June 4, 1990. A voluntary agreement was approved on October 18, 1990, establishing a compensation rate of $318.33 per week. The claimant then sought to reopen the issue of his compensation rate in the proceedings below. He submitted an earnings schedule, marked Exhibit B, indicating as follows:

Week From (Date)

Week To (Date)

Amount Paid

Number of days worked

5-13

$240.00

2

5-20

$480.00

4

5-27

$592.50

5

6-03

$360.00

3

6-10

$418.60

4

6-17

$643.25

5

At the top of the schedule, the claimant’s employment date is listed as May 10, 1990 (a Thursday), with a June 4, 1990 accident date and a June 6, 1990 disability onset date.

The trial commissioner found that this exhibit indicates that the claimant worked three weeks prior to his June 4, 1990 injury. We observe that the claimant’s current base compensation rate of $318.33 corresponds to two-thirds of the $477.50 average of $480, $592.50 and $360.00, as required by § 31-307 on the date of injury. Also, § 31-310 (Rev. to 1990) states that a claimant’s average weekly wage “shall be ascertained by dividing the total wages received by the injured worker from the employer in whose service he is injured during the twenty-six calendar weeks immediately preceding that during which he was injured, by the number of calendar weeks during which, or any portion of which, such worker was actually employed by such employer . . . . When the employment commenced otherwise than at the beginning of a calendar week, such calendar week and wages earned during such week shall be excluded in making the above computation.” The trier stated that, “although the claimant makes a creative argument concerning when the work weeks in question began and ended, the undersigned can find no violation of the calculation of the base compensation rate, vis-à-vis 31-310.” Findings, ¶ 4. Accordingly, he denied the claimant’s motion to modify his base compensation rate, which decision has now been appealed to this board.

Section 31-315 entitles a party to modify an award or voluntary agreement in cases of mutual mistakes of fact. Marone v. Waterbury, 244 Conn. 1, 17 (1998). The claimant maintains that such a mistake occurred here regarding the computation of his weekly wage rate. In his view, the trier erred by failing to correct that rate even though he made the necessary subordinate finding that the claimant worked for three weeks prior to his injury as per Exhibit B. Claimant’s Brief, p. 4.; Findings, ¶ 2. The claimant interprets that finding as necessarily implying that the trier accepted his factual assertion that the claimant’s injury occurred during the “work week” in which he earned $360, thereby eliminating that week from consideration in the “average weekly wage” calculation process, and leaving only two full weeks of employment that could properly be included in that calculation. Significantly, the claimant did not file a Motion to Correct with the trial commissioner, nor did his petition for review request that a transcript of the formal hearing be provided to this board. Not only does this curtail our ability to scrutinize the accuracy of the trier’s findings; Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001); but the absence of a transcript prevents us from using the discussion at oral argument to clarify the meaning of the trier’s finding, which is ambiguous under these circumstances.

The claimant advocates a purely literal reading of ¶ 2 that does not take into account the legal context of § 31-310. His brief seems to ignore the possibility that any other reading of that finding is even plausible. However, the trial commissioner was clearly aware that, under § 31-310, the initial, abbreviated week of employment listed in Exhibit B would be excluded from the wage calculation. Thus, by saying that the claimant “worked for three weeks prior to his June 4, 1990 injury” as per Exhibit B, the trier was most likely stating that the claimant worked for three “full” weeks that could be accounted for in the wage calculation. This interpretation is borne out by the exhibit itself, which, contrary to the claimant’s assertions, lists the claimant’s first week of employment as ending on May 13, 1990, rather than beginning on May 13, 1990 (a Sunday). The exhibit also states that the claimant was hired on May 10, 1990 (a Thursday). The most straightforward reading of this table is that the claimant worked for two days during the week ending on May 13, after which he put in three “full” work weeks before being injured on Monday, June 4 (which would not be part of the calendar1 week in which he worked only three days and earned $360, contrary to counsel’s insistence). Such a reading comports precisely with the claimant’s current $318.33 compensation rate, and the trier’s refusal to modify that rate. Where two varying interpretations of a factual finding are possible, and one is consistent with the trier’s legal conclusion, this board should construe the finding in the more hospitable manner. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996).

The claimant also argues that wages earned following the date of his injury should be included in his wage rate calculation, insofar as he did not leave work in order to obtain medical care until Wednesday, June 6, 1990, after which he missed the next two work days, and then returned to work for five full days the following week. He cites Moxon v. Board of Trustees of Regional Community Colleges, 37 Conn. App. 648 (1995), in support of his argument, where our Appellate Court held, “The relevant date for determining compensation to an injured worker is the date of that worker’s incapacity to work, which might not necessarily be the date of injury.” Id., 651. See also, Mulligan v. F.S. Electric, 231 Conn. 529, 544-45 (1994) (workers whose traumatic injuries cause delayed incapacity should receive benefits calculated on basis of earnings preceding their incapacity). We acknowledge that the approved voluntary agreement states that incapacity began on July 13, 1990, over a month after the claimant’s injury. In theory, this would tend to support a finding of a later incapacity date, though there is no evidence as to whether the claimant was employed between June 16, 1990, and July 13, 1990, and Exhibit B lists the date of disability as June 6. However, the trial commissioner made no finding regarding a date of incapacity, and the claimant did not request that one be made via Motion to Correct. Without such a subordinate factual finding, it would be virtually impossible for this board to find legal error in the way § 31-310 has been applied.

Moreover, we note that the claimant’s action to reopen the voluntary agreement was filed in 1999, many years after said agreement had been approved by this Commission. Under § 31-315, a trial commissioner may modify an agreement in situations where the employee’s degree of incapacity or measure of dependence has changed, or where changed conditions of fact have arisen necessitating amendment of the agreement. None of those situations exists here. A commissioner also has the same power to open an agreement as a state court has to open one of its judgments, i.e., in cases of fraud, accident, and mistake of fact. Marone, supra, 17. Though the claimant would cast this action as a rectification of a mistake of fact, it has not been shown that any findings of fact relative to the claimant’s date of incapacity should be altered. Instead, it appears that if there was a mistake, it was a retrospective mistake in the way the law was applied in 1990, prior to our Supreme Court’s 1994 decision in Mulligan, supra, which extended the applicability of the “date of incapacity” wage calculation rule to traumatic injury cases. A commissioner may not reopen an award or agreement on the basis of a prior mistake of law. Marone, supra, 18 (Supreme Court decision interpreting law in a new way could only be applied retroactively to pending cases, if at all); Kalinick v. Collins Co., 116 Conn. 1, 8 (1932) (Commission lacked power to reopen award to recalculate average weekly wage based on subsequent change in law occasioned by Rousu v. Collins Co., 114 Conn. 24 (1931)). For these reasons, we find no error in the trier’s failure to reopen the voluntary agreement so that the claimant’s post-injury wages as reflected in Exhibit B could be factored into his compensation rate.

The trial commissioner’s decision is accordingly affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 We acknowledge that a standard American calendar lists a week as beginning on a Sunday, and ending on a Saturday. The structure of Exhibit B strongly indicates, however, that the claimant’s employer used Monday as the first day of the week, and Sunday as the last day of the week in preparing that wage summary. The dates listed may all be Sundays, but they appear in the “week ending” column, including May 13, the first date listed. The Exhibit states that the claimant began employment on Thursday, May 10, which was presumably one of the two days listed in the first row of figures. There is no evidence in the record as to which days of the week the claimant worked, and we have no basis to assume that by “correcting” those weeks worked to read Saturday, May 12 as the last day of the first week rather than Sunday, May 13, etc., it would change the claimant’s compensation rate in any way. BACK TO TEXT